ADVANCED HEALTH-CARE DIRECTIVE in WY
Advanced Health Care Directive, Advance Directive, and Living Will Forms etc. became household words in 2005 due to events surrounding the acrimonious dispute in Florida over Terri Schiavo. They are an important part of any estate plan. She was the woman who was in a persistent vegetative state and had not left a living will to guide her family through her end-of-life care. As medical care has made enormous advances, it is now possible to keep many people alive in a persistent vegetative state for very long periods.
Individuals may wish to use an advance directive to place limits on the extraordinary possibilities of modern medical care, particularly if they have little chance of recovery or the burdens outweigh the possible benefits of continued treatment. At some point a person may wish for his or her health-care providers to switch over to palliative care, helping the patient live as comfortably as possible while going through the inevitable process of dying.
It has become more and more common for people to die from the withdrawal of some form of technological support. Unfortunately, it is often impossible to determine a person’s wishes once that person no longer has capacity to express him or herself. While there appears to be a societal consensus that individuals have the right to refuse life-sustaining medical interventions—including artificial nutrition and hydration—there is less clarity regarding how to make such decisions when patients cannot speak for themselves. Advanced health care directive forms and living will forms can provide much needed clarity.
Not having a living will often force loved ones to make hard and divisive health-care and end-of-life decisions. It can also interfere with their ability to make more routine health-care decisions on behalf of an incapacitated loved one. Despite these concerns, data indicate that a majority of Americans have not completed some form of living will or health-care proxy and that family members continue to have a difficult time predicting their loved ones’ wishes regarding life-sustaining care.
While planning for your health-care decisions during what may be the last days of your life seem macabre, such documents provide an important means of helping you, your family, and possibly others to plan for your medical treatment, particularly when you are chronically ill and can no longer speak for yourself. If you have any questions please don't hesitate in contacting us and speaking to our trusted Wyoming trust attorney.
Do I need an AHCD?
Without an AHCD, health-care decisions can be difficult for family and loved ones to make on their own. The case of Terry Schiavo is a tragic example of the difficulties that can arise. In Terry’s case, her husband made a decision to remove her life support after several years of incapacity. Her parents, however, wanted to keep Terry on life support for as long as possible. The result was years of legal battles, attorney fees, medical bills, and heartache.
Had Terry created an AHCD before her incapacity, she would have been able to declare her wishes and allow her designated agents to make health-care decisions on her behalf without court approval. Even in less controversial situations, an AHCD can provide the principal’s loved ones with a sense of direction, taking part of the decision-making burden off family members.
What is a Healthcare Directive?
The Wyoming Health Care Decisions Act allows adults and emancipated minors to execute Advance Health Care Directives or AHCDs. An AHCD has two primary purposes:
First, an AHCD can provide an advance directive (also known as an “individual instruction,” “personal directive,” “directive to physicians,” or “advance decision”). An advance directive provides instructions to medical professionals regarding the signer’s medical treatment and end-of-life care. The main purpose of creating an AHCD is to communicate the principal’s intentions and wishes to medical doctors and loved ones, so that they may have guidance when making health-care decisions for the principal (the person granting the power).
Second, an AHCD can act as a power of attorney for health-care (also known as a “health-care proxy”). It does so by allowing the principal to appoint an agent (the person receiving the power) to make health-care-related decisions on the principal’s behalf when he or she can no longer do so.
Such decisions must be made according to the terms of the principal’s known wishes, whether made orally, made in writing, or stated in the advance directive. This function is similar to a Durable Power of Attorney, but it specifically relates to the principal’s health-care decisions rather than financial decisions. In addition to the above tools, a principal can use an AHCD to name his or her primary physician and to nominate a guardian in the event that the principal becomes incapacitated.
The Agent's authority
Unless the AHCD indicates otherwise, a health-care agent’s authority becomes effective when the principal becomes legally incapacitated. Incapacity is an individual’s inability to understand the significant benefits, risks, and alternatives to proposed health-care decisions and to make and communicate those decisions to health-care providers.
What qualifies as legally incapacitated depends on the state where the person lives and how his or her AHCD defines the term. If the AHCD does not specify what constitutes incapacity, the principal’s primary care physician or the primary health-care provider will make the decision. Unless the AHCD specifies otherwise, the agent’s power ends when the principal regains capacity.
Individuals may fear the loss of control that occurs when a power of attorney for health-care becomes effective. This is understandable. The thought of not having control over one’s most basic personal decisions can be troubling. But individuals should recall that the power becomes effective only in situations in which the individual would be unable to act on his/her own behalf in the first place.
An AHCD can allow someone to retain a modicum of choice by making decisions and designating agents while he or she still has the power to do so. The alternative may cause a much more severe loss of control, such as in the case of guardianship proceedings, or the appointment of an agent, or authorization of medical procedures that are not in accord with the individual’s wishes.
Choosing an agent
When choosing an agent, the principal should consider many factors that will affect the nature and effectiveness of the relationship. Some factors to consider include:
- the agent’s agreement with or respect for the principal’s decisions and values,
- potential friction within the family that may result if certain members are appointed,
- whether different powers should be split and assigned to different agents,
- whether to have one agent with sole discretion or multiple agents that must act in unison,
- who will become successor agent should the original agent be unable to fulfill the role, and
- whether a physician would be better able to make decisions than family or friends.
It is often a good idea to name successor agents in case the primary agent is unavailable. Be careful about selecting agents based on family relationships alone. A child may not have the maturity to deal with a parent’s difficult end-of-life decisions.
Many principals provide copies of their AHCD to hospitals or primary physicians providing them with health-care. Hospital staff members routinely ask patients if they have AHCDs or a living will upon admission and offer to provide forms if patients desire them.
While AHCDs contain very private decisions, it can be a good idea for the principal to let his or her agents know that they have been appointed, where they can obtain the original document, and the nature and reasoning of the principal’s wishes. Legal paperwork is important, but it is impossible to plan every specific scenario. Communication can put agents in a better position to act on the principal’s behalf in unanticipated situations.
The surrogate alternative
Wyoming’s surrogate consent statute provides an alternative means of having someone make health-care decisions on one’s behalf, even if no AHCD exists. A person without an AHCD may appoint a surrogate by personally notifying his or her primary health-care provider that the person has been selected to act as a surrogate. The statute does not specify the precise contents of this notification, but it likely needs to be specific enough that the provider knows that the patient wants the surrogate to make decisions on his or her behalf.
A surrogate, much like an agent, has the power to make decisions on behalf of an incapacitated person without court approval. The primary health-care provider may require the surrogate to provide an affidavit swearing to his or her authority. A patient can revoke a surrogate’s authority through a signed writing or by informing the primary health-care provider.
Even if an incapacitated person has not appointed a surrogate or his or her surrogate is not reasonably available, W.S. §35-22-406 lists potential surrogates in order of priority, beginning with the person’s spouse (unless legally separated). If the person has no spouse or the spouse is unwilling or unable to act as surrogate, then the next person in line becomes the surrogate. After spouses, the priority passes to an adult child, a parent, a grandparent, an adult brother or sister, and, finally, an adult grandchild, in that order.
If none of those individuals is reasonably available, a reasonably available adult who has shown special care and concern for the person and is familiar with his or her values may act as surrogate. The list of succession is only suggested, and not binding on the family members. A person who claims authority to act as surrogate must notify the patient’s readily accessible family members named by the statute as soon as practicable.
The statute requires a surrogate to make health-care decisions based on the patient’s individual instructions and any other wishes known by the surrogate. If no specific wish is known, the surrogate must act in the patient’s best interests based on the patient’s personal, philosophical, religious, and ethical values known to the surrogate, as well as reliable oral and written statements to the patient’s family members, friends, health-care providers, or religious leaders.
The surrogacy statute appears to be an attempt to create legally enforceable health-care agency relationships based on how many people actually select their agents. For example, it may be more common for a patient to simply say, “Doc, if anything happens to me, talk to my daughter, Mary. I trust her,” rather than sign a formal AHCD.
But the surrogacy process may create complications. For example, a surrogacy appointment may have assisted in resolving the Terry Schiavo dispute since a spouse is generally given priority over parents and can give one person the authority to make a decision. But a surrogacy would have done little to quell disagreements regarding whether Ms. Schiavo’s husband was carrying out her wishes. While Florida law permitted the automatic appointment of a spouse as health-care proxy, it allowed family members to file lawsuits contesting decisions that they did not believe followed the patient’s wishes. While Wyoming law may not provide the same complications, it does require consideration of the patient’s wishes based on written and oral instructions given to other family members, which can simply reinforce uncertainty if those wishes were never written down.
Additionally, if multiple individuals in a class of potential surrogates are appointed, they may not agree about specific medical decisions. If the primary health-care provider is informed that multiple members of a class of surrogates (for example, multiple sisters of the patient) disagree regarding a health-care decision, the provider must comply with the decision made by a majority of surrogates. This can cause problems because family members could have conflicting opinions about what should happen, especially if some family members may benefit economically from a certain result. Unlike the statute on which it is modeled, Wyoming’s law does not require disqualification of surrogates in the event of a surrogate deadlock. It may be necessary to resort to courts to resolve surrogate deadlocks, although there do not appear to be reported Wyoming cases regarding how a court would resolve the disagreement.
POWERS THAT A PRINCIPAL MAY DELEGATE THROUGH AN AHCD
Many people who prepare an AHCD select an agent or multiple agents who can act once they become incapacitated. The agent or agents can be loved ones, relatives, physicians, or anyone the principal chooses. If the principal’s wishes are unknown, the agent must make decisions in the principal’s best interests and based on the principal’s known personal values.
Depending on the other provisions of the AHCD, the principal can give the agent complete control over health-care decisions or specify certain powers such as those listed below. The agent’s authority is usually set by terms of the AHCD and can include discretion to make any decision the principal could have made if he or she had capacity.
If not selected by the principal, the agent has the power to choose or release a health-care provider or primary care physician for the principal’s benefit. Principals may also elect whether they want paramedics and E.M.T.s to administer life saving techniques such as CPR. Typically, emergency medical responders will administer these procedures unless the AHCD specifically states that the principal does not want these procedures.
If the principal elects not to have these procedures, it may be beneficial for the principal to obtain a Do Not Resuscitate Order (also known as a “DNR” or “Cardiopulmonary Resuscitation Directive”).
The AHCD also allows principals to choose whether they want their life prolonged by artificial means if a doctor diagnoses them with a terminal illness. Most AHCDs allow principals to specify exactly what treatment they are willing to accept as well as those that they refuse. This includes specifying certain procedures, tests, or programs that the principal does or does not want. The principal may even limit the agent’s ability to authorize pain relief through medications. Some principals choose this option for religious or personal reasons that prevent them from being able to accept medication.
Unless otherwise provided by the AHCD, the agent can refuse to accept medical care—even over a physician’s objections—to the same extent that the principal could if he or she had capacity. There are limited situations in which a health-care provider may decline to comply with an instruction that interferes with his or her conscience or requires medically ineffective health-care or health-care contrary to generally accepted health-care standards. A provider who refuses to comply must promptly inform the patent and agent and provide continuing life-sustaining care until the principal can be transferred to another institution.
Often, the AHCD will ensure that the agent and health-care professionals are not held liable for good-faith reliance on the AHCD. Wyoming law provides that health-care providers are immune from civil or criminal liability for acting in good faith in complying with an apparent agent’s decision to withhold or withdraw treatment, declining to comply based on the provider’s belief that the agent lacks authority, and other circumstances.
At any given time, more than 115,000 people are on waiting lists for life-saving or healing organ, eye, or tissue transplants. An AHCD can be used to state the signer’s wishes regarding organ donation (also known as anatomical gifts). However, if someone desires to be an organ donor, he or she may want to consider putting the designation on his or her driver’s license or ID card or registering with the Donor Alliance, since the AHCD may not be immediately available when a health-care provider needs to determine someone’s donor status.
Right to refuse treatment
In the case Cruzan v. Director, Missouri Department of Health, the U.S. Supreme Court held that people have a constitutional right to refuse life-saving medical care. This means that principals can choose whether to receive life-saving treatment through their AHCD. However, the court still allows states to impose procedures and safeguards to ensure that the agent follows the principal’s wishes.
The other important case in this area is Washington v. Glucksberg, which states that a person does not have a constitutional right to receive help from a physician to aid in dying or committing suicide. Because of this, it is important to understand that an AHCD does not give an agent the power to euthanize the principal or engage in assisted suicide.
While the document does allow a principal to choose whether to have life-sustaining treatment such as food and water tubes (in other words, when to “pull the plug”), most states refuse to recognize any provision of the AHCD that expresses wishes related to euthanasia. Wyoming’s AHCD and CPR directive statutes both expressly state that they do not authorize euthanasia.
DRAFTING AN AHCD
At a minimum, the AHCD document must be in writing and signed by the principal. The principal will also need a notary public to notarize the document, and at least two witnesses must sign the document. There are certain people who may not act as witnesses, including health-care providers, the agent or agents named in the agreement, or the operator of a care facility. It is also important that each AHCD include a consent and release for HIPAA (Health Insurance Portability and Accountability Act) so that the agent may have access to the principal’s medical information. Without this release, the agent will have to make health-care decisions without necessary information that doctors and health-care providers can normally supply to a patient. This is because HIPAA regulations require very strict confidentiality for medical records.
Another important consideration is the portability of an AHCD. Portability is the term given to describe whether states outside of the state where the principal creates it will recognize the document. A non-Wyoming AHCD is valid if it complied with the law of the state in which it was executed. In the case of a Wyoming AHCD, it is difficult to predict where someone may become incapacitated. If the principal is injured while in another state and needs medical attention, the principal will want to ensure that doctors in that state will recognize their AHCD. Thus, the document needs to specify the principal’s wishes without stating anything that would be too controversial for the laws of a foreign state. Wyoming AHCDs often specify that the principal intends for it to be honored by other states.
Like other legal documents, it is advisable to consult an attorney rather than attempting to assemble an AHCD for yourself. While Wyoming once provided a statutory form, it no longer does so. Forms printed from the Internet may also create ambiguities that can result in confusion in the event that you are no longer able to express your wishes. AHCDs should be periodically reviewed to ensure that they continue to reflect the principal’s wishes.
An AHCD is practically useless if no one is aware of its existence. It is, therefore, advisable for the principal to inform his or her primary physician and agents of the document’s existence and location and possibly provide them with photocopies. Many hospitals now ask for copies when admitting patients. Some states also provide registries for this purpose. Wyoming does not have an AHCD registry.
REVOCATION AND REVISION OF AN AHCD
An individual is presumed to have capacity to make health-care decisions, to give or revoke an Advance Health Care Directive, and to designate or disqualify a surrogate unless the individual’s primary physician certifies in writing that the person lacks such capacity. An AHCD becomes ineffective when the principal revokes the power in writing or creates a new AHCD that supersedes the old one. Keep in mind that principals may only create or revoke an AHCD if they have capacity. The appointment of a spouse as agent is revoked upon divorce, annulment, or legal separation. Additionally, if the incapacitated principal regains capacity, the agent’s power is revoked until the principal becomes incapacitated again.
For more information about estate planning, including Wills, trusts, and other estate planning instruments, consult with a knowledgeable and experienced estate planning attorney.